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Falmouth might need special legislation to move wind turbines

Falmouth will likely require special legislation to dismantle and dispose of the two wind turbines at the wastewater treatment plant site on Blacksmith Shop Road.

Wind turbines 1 (foreground) and 2 at the Falmouth Wastewater Treatment Plant – ENTERPRISE FILE PHOTOGRAPH/GENE M. MARCHAND

“Under my review, because the town was not able to get the approval of the state to do a 25A procurement, this really presents a myriad of procurement and disposal issues, and legal issues, to try to move these turbines to some other parcel of land,” attorney Christopher W. Morog told the Falmouth Select Board on Monday, October 26.

“All of the Massachusetts general laws provide for putting these things up,” Falmouth Town Counsel Frank K. Duffy said. “There is no provision in the law that really accommodates us for moving them or taking them down, other than multiple layers of procurement processes, each of which costs a significant amount of money and requires us to engage professionals, engineers and contractors.”

Because of this, Mr. Morog said, special legislation will likely be required to allow Falmouth to go through this procurement process once.

“If you want to move those to some other area, there is design for where they are to go, all the site work, all the permitting, the interface with the grid and the construction contract,” he said. “I just don’t know there is value in those turbines to go through all that with all those upfront costs, so it makes sense to me to have a discussion with the Massachusetts Clean Water Trust, once again, come up with a plan to move forward and then try to get special legislation effectuate whatever is acceptable to both parties.”

The town borrowed $4,865,000 from the trust to erect Wind 2; the loan agreement states Falmouth would not owe principal or interest as long as Wind 2 remains operational. However, because Wind 2 was operated in the past, the town’s obligation has been reduced to $3.5 million.

“The town needs to deal with the Clean Water Trust in trying to come to some amicable solution and move forward as well as maximizing the value of these turbines, which currently exist on town land,” Mr. Morog said.

Town Manager Julian M. Suso said the town has attempted to work with the Clean Water Trust.

“The response we got back is that the Clean Water Trust was not going to make a decision until we came back to them with agreements for offsite relocations and laid out exactly what was specified and what agreements were in place,” Mr. Suso said. “Until then, they were not going to give us any indications about the decision they would make to relieve us of that debt. We’re hoping to approach it differently this time.”

“I remain extremely frustrated with the state, on the one hand, saying we’re going to have to pay back the $3.5 million dollars, but on the other hand saying we’re not going to help you,” board member Douglas H. Jones said. “The state agencies are not communicating with each other or are speaking from two sides of their face at the same time. I understand that they are different state organizations, but the fact that the DoER [Massachusetts Department of Energy Resources] isn’t willing to allow us to use the 25A procurement law is just unbelievable.”

Mr. Jones said the decision has tied the town’s hands, leaving it with no viable way to move forward with disposal of the turbines.

“They sold us a bill of goods,” he said. “The state is the one who dumped these turbines on us. They set us all up for this, and the fact is they’re now not willing to help us get out of it. Yes, it is the first time it happened, but we were the first ones to step forward, be the community to support it, be at the forefront of this, and now we’re getting screwed over by the state again. It is just completely infuriating.”

Chairwoman Megan E. English Braga said the town was “willing to be the sort-of guinea pigs in this exercise, and it really backfired in an enormous way that has been detrimental to this community.”

She said the ongoing cost of the turbines has a significant economic impact on the community and its residents.

“In this economic environment we’re in, they are really hammering an economic blow to our community in requiring this,” Ms. English Braga said, asking if there was a way to review the Department of Energy Resources decision.

Mr. Morog said he was not aware of any mechanism to challenge the decision. In addition, he reiterated the need to speak with the Clean Water Trust before spending additional time and money on the turbines.

Ms. English Braga said town administration should consult with State Treasurer Deborah B. Goldberg, noting that the state treasurer could be sympathetic to the town’s cause if she knew about the financial burden the turbines present and the town’s commitment to green energy.

“The fact is every dollar we continue to pour into the lost cause of these turbines is a dollar we can’t spend on green energy and renewable energy projects as we go forward,” Ms. English Braga said. “We have absolutely nothing to lose in being the strongest advocates we can for the community because at this point these are huge burdens hanging around the neck of every taxpayer in this community.”

In addition to the loan from the Clean Water Trust, the town owes money on Wind 1.

“Keep in mind that no matter what we do, we still have about 10 years’ worth of annual payments on Wind 1 that we borrowed with a 20-year bond back when this seemed like the cutting-edge thing to do,” Mr. Suso said. “There are some consequences that will continue to play themselves out, no matter what we do. We really prefer not to lay out a whole lot more cash on something that is an emerging gamble.”

Falmouth installed its two Vestas 1.65-megawatt, V-82 wind turbines with 80-meter-tall towers in 2009 and 2010. Wind 1 was shut down in September 2015 after the Falmouth Zoning Board of Appeals issued a cease-and-desist order. Wind 2 was shut down in June 2017, after Barnstable County Superior Court Judge Cornelius J. Moriarty II upheld the board of appeals decision deeming the turbines a nuisance. In December 2017, Building Commissioner Rodman L. Palmer ordered the removal of Wind 1 as a noncomplying structure under the town’s Wind Energy System bylaw. Town Meeting approved $2.5 million to begin the disposition of the two wind turbines in November 2019.

“We are no closer to a resolution now than we were when we started having this conversation a couple of years ago,” Ms. English Braga said. “We are really in the same spot.”